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Political Interference and the Challenges Facing the US

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THE YALE LAW JOURNAL FORUM JANUARY 15, 2021 Treat Every Defendant Equally and Fairly: Political Interference and the Challenges Facing the U.S. Attorneys’ Offices as the Justice Department Turns 150 Years Old Joyce White Vance abstract. The US Attorneys’ Offices are the flagships of the federal government’s law-en- forcement work. But as the Department of Justice (DOJ) approaches its 150th anniversary, there are deep concerns for their future. The four years of the Trump Administration have shaken public confidence in DOJ, and during his tenure, Attorney General William Barr all too ofen took on the role of the President’s lawyer rather than upholding the integrity and credibility of line prosecutors to work free from political interference. This Essay, written in the weeks leading up to the 2020 presidential election,1 argues that, in a new administration, there must be a hardcore realignment of cultural values inside of the Justice Department that supports its independence and permits line prosecutors to effectively resist and reject political interference in criminal matters. The past four years have revealed frailty in the Department that requires more than the new laws and new poli- cies that will be designed to shore up some of the weaknesses that have been revealed. Ultimately, even with those new laws and policies, there must be a culture restoration that guarantees they will be implemented effectively so that the independence of prosecutions from political influence, which is critical to our criminal-justice system, is firmly in place. introduction The moment when Aaron Zelinsky, an Assistant United States Attorney (AUSA) in the District of Maryland, refused to silently stand by while Attorney 1. This Essay was completed well ahead of the election and before Attorney General William Barr’s departure from office. Although no substantive updates have been made since comple- tion, there was minor updating to reflect post-election events like the pardons of Paul Mana- fort and Roger Stone, which only further strengthen the argument made here. 516 treat every defendant equally and fairly General William Barr attempted to subvert justice for President Trump’s long- time friend Roger Stone was a moment of pride for federal prosecutors across the country. Zelinsky held the line against political interference in federal pros- ecutions. He did it possibly at great expense, at least in the short term, to his career. But Zelinsky’s choice was clear. He testified as a whistleblower before Congress and explained, in his view, that the U.S. Attorney for the District of Columbia, where the Stone case was being prosecuted,2 succumbed to political pressure. He testified that Stone “was being treated differently from any other defendant because of his relationship to the President.”3 This subversion of the Department of Justice (DOJ) would have been shock- ing in any other administration, but by February of 2020, it was almost predict- able. Roger Stone, longtime friend and political advisor4 of President Trump, was indicted in January 2019 by Special Counsel Robert Mueller on one count of obstruction of justice, five counts of false statements, and one count of witness tampering.5 Stone denied the charges and pleaded not guilty. On November 15, 2019, a jury in the District of Columbia convicted Stone on all charges.6 Stone became the sixth Trump aide or adviser convicted by members of the Mueller team.7 Federal prosecutors filed their sentencing recommendation on February 10, 2020. Consistent with federal sentencing guidelines, they suggested a sentence of 87-108 months.8 Shortly afer they made that recommendation, President Trump tweeted that the recommendation was an impermissible “miscarriage of justice.”9 The following day, the Government filed a “supplemental and 2. Indictment, United States v. Stone, 394 F. Supp. 3d 1 (D.D.C. 2019) (No. 1:19-cr-00018). 3. Oversight of the Department of Justice: Political Interference and Threats to Prosecutorial Independ- ence: Hearing Before the H. Comm. on the Judiciary, 116th Cong. 2 (2020) [hereinafer Zelinsky Hearing] (statement of Assistant United States Attorney Aaron Zelinsky), https://judiciary .house.gov/uploadedfiles/zelinsky_opening_statement_hjc.pdf [https://perma.cc/ABM9 -8DZV]. 4. See Olivia Paschal & Madeleine Carlisle, A Brief History of Roger Stone, ATLANTIC (Nov. 15, 2019), https://www.theatlantic.com/politics/archive/2019/11/roger-stones-long-history-in -trump-world/581293 [https://perma.cc/K38A-UWYY]. 5. Indictment at 21-23, United States v. Stone, F. Supp. 3d 1 (D.D.C. 2019) (No. 1:19-cr-00018). 6. Ashraf Khalil & Michael Balsamo, Roger Stone Guilty of Witness Tampering, Lying to Congress, ASSOCIATED PRESS (Nov. 15, 2019), https://apnews.com/ad355d2c983e4a7c85bc17e86d8c563f [https://perma.cc/F2BU-DWHU]. 7. Id. 8. Hadley Baker, Federal Prosecutors Recommend Sentencing Roger Stone to Seven to Nine Years, LAWFARE (Feb. 11, 2020 12:17 PM), https://www.lawfareblog.com/federal-prosecutors -recommend-sentencing-roger-stone-seven-nine-years [https://perma.cc/8YEQ-F8GT]. 9. Donald J. Trump (@realDonaldTrump), TWITTER (Feb. 11, 2020, 1:48 AM), https://twitter .com/realDonaldTrump/status/1227122206783811585 [https://perma.cc/V6BB-96QJ]. 517 the yale law journal forum January 15, 2021 amended” sentencing motion, which maintained that the previously recom- mended sentence, signed off on by the same U.S. Attorney who signed the sup- plemental pleading, could be considered “excessive and unwarranted.”10 The prosecution confirmed it was still requesting a custodial sentence but lef its length to the discretion of the court.11 Barr denied allegations that the Justice Department’s change of heart was a response to a presidential command,12 but he seemed to be the only one who believed that. The President himself tweeted his thanks to Barr for the change: “Congratulations to Attorney General Bill Barr for taking charge of a case that was totally out of control and perhaps should not have even been brought.”13 This spectacle led four senior prosecutors assigned to the Stone case to with- draw from it, one of whom resigned from the Department entirely.14 They did what every federal prosecutor knows they must do in the face of political meddling in a case—even if that meddling seemingly comes at the be- hest of the President. Zelinsky protested when the team’s recommendation was bypassed, withdrew from the case, and finally resigned from his temporary spe- cial posting in the District of Columbia.15 There is no question that he did the right thing.16 10. Hadley Baker, Prosecutors Amend Roger Stone Sentencing Recommendation, LAWFARE (Feb. 11, 2020), https://www.lawfareblog.com/prosecutors-amend-roger-stone-sentencing -recommendation [https://perma.cc/MT84-97GE]. 11. Id. 12. Michael Balsamo, AG Barr’s Remarks Come Afer Change over Stone Sentencing, COLUMBIAN (Feb. 13, 2020, 8:41 PM), https://www.columbian.com/news/2020/feb/13/ag-barrs-remarks -come-afer-change-over-stone-sentencing [https://perma.cc/Z4YQ-KAU7]. 13. Donald J. Trump (@realDonaldTrump), TWITTER (Feb. 12, 2020, 6:53 AM), https://twitter .com/realDonaldTrump/status/1227561237782855680 [https://perma.cc/WV64-634A]. 14. Sarah N. Lynch, Prosecutors Quit as Justice Department Seeks Shorter Sentence for Trump Ally, REUTERS (Feb. 11, 2020), https://www.reuters.com/article/us-usa-trump-russia-stone /prosecutors-quit-as-justice-department-seeks-shorter-sentence-for-trump-ally-idUSKBN2 052E5 [https://perma.cc/J8P8-782A]. 15. See Andrew Prokop, Prosecutors Resign from Roger Stone’s Case Afer DOJ Interference in Sentenc- ing, VOX (Feb. 11, 2020, 6:15 PM EST), https://www.vox.com/2020/2/11/21133622 /roger-stone-prosecutor-aaron-zelinsky-resigns [https://perma.cc/R5XH-8BLK]. 16. If anything, President Trump’s commutation of Stone’s sentence just days before he was re- quired to report to begin service of his prison sentence confirms that Zelinsky and his col- leagues properly assessed that there was political influence at work here. For a discussion of President Trump’s commutation, see Peter Baker, Maggie Haberman & Sharon LaFraniere, Trump Commutes Sentence of Roger Stone in Case He Long Denounced, N.Y. TIMES (July 10, 2020), https://www.nytimes.com/2020/07/10/us/politics/trump-roger-stone-clemency .html [https://perma.cc/4ZQ8-QYDA]. 518 treat every defendant equally and fairly These events set off a firestorm and the truth came to light. The Attorney General was forced to defend his conduct and, in the process, exposed more of the truth. Sunlight, as Justice Brandeis opined, is the best disinfectant.17 The Justice Department is going through a challenging time as it passes its 150-year anniversary.18 Zelinsky testified that he had never seen political inter- ference brought to bear on a prosecution before the Stone case.19 In fact, the tradition, policies, and culture of the U.S. Attorneys’ Offices are specifically de- signed to prevent against that. Nonetheless, there was a disturbing tendency in Barr’s Justice Department for the appearance of improper political influence, and perhaps the actuality of it, to taint prosecutions, resulting in diminished public confidence in the institution. It would be nice to write a paean to the Justice Department on the auspicious occasion of its anniversary. It would be comforting to write that U.S. Attorneys’ Offices across the country will emerge from the maelstrom of the Trump presi- dency unscathed. But it is no longer possible to say so with absolute certainty. We are at a critical point where the future hangs in the balance. Assessing the damage to the institution while in the moment is a difficult task, and this challenge is compounded by the reality that more misconduct seems to take place or come to light with each passing week. From the time I started work on this Essay until the final edits were submitted, Barr seemed to be engaged in a solid effort to undermine the Department’s reputation.
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